Cardinal Burke

April 2014

By Christopher Manion

THE NEW OXFORD REVIEW

(Christopher Manion is Director of the Campaign for Humanae Vitae™a project of the Bellarmine Forum. He is a Knight of Malta.)

In his guest column “On ‘Politicizing’ the Eucharist” (Dec.)Fr. Regis Scanlon explains the wisdom of canon 915 of the Code of Canon Law which reads“Those who are excommunicated…and others who obstinately persist in manifest grave sin are not to be admitted to Holy Communion.” The argument over the canon’s application is not going to go away soon. Recent events however have significantly affected the prospects for applying this canon to pro-abortion politicians in the U.S.

In May 2007as he was traveling to Brazil on his first papal trip outside Europe Pope Benedict XVI told an inquiring reporter that he would support Mexican bishops who with recourse to canon 915 excommunicate pro-abortion lawmakers in their country. “It is part of the code” Benedict said. “It is based simply on the principle that the killing of an innocent human child is incompatible with going in communion with the body of Christ.”

Within hours a reporter from The Hill a congressional newspaper in WashingtonD.C.asked Patrick Leahy a Democratic senator from Vermont to comment on the Pope’s statement. Leahy’s reply was blunt: “I’ve always thought that those bishops and archbishops who for decades hid pederasts and are now being protected by the Vatican should be indicted.” Leahy a Catholichas served as chairman of the Senate Committee on the Judiciary since January 2007a position he holds to this day. Did his searing remark play a quiet role in a recent Vatican re-assignment?

Divergent Viewpoints
When Pope Francis was elevated to the Throne of Peter in March 2013he took his time in reviewing the membership of the Vatican’s various congregations. Finally in December 2013Francis appointed Donald Cardinal Wuerl archbishop of Washington D.C.to replace Raymond Cardinal Burke as the only American serving in the Congregation for Bishops which is tasked with reviewing candidates for the episcopacy whose names will then be submitted to the Pope.

The change is not insignificant. In particular the two cardinals differ profoundly on the controversial application of canon 915 in the case of American public figures. Cardinal Wuerl has long maintained a “pastoral approach” regarding the many prominent Catholic politicians in his archdiocese who publicly advocate abortion. He re-articulated his view during a March 2012 speech to the John Carroll Society at the Church of the Little Flower in BethesdaMaryland. According to the National Catholic Register when Cardinal Wuerl was asked to explain when Communion should be denied under canon 915“he repeated his earlier position that only in extremely rare cases after an individual has been publicly excommunicated” should it be denied.

Cardinal Wuerl’s “earlier position” on canon 915 has been on the record since he was bishop of Pittsburgh. In a 2004 speech that was later published by the U.S. bishops’ conference he said“Given the long-standing practice of not making a public judgment about the state of the soul of those who present themselves for Holy Communion it does not seem that it is sufficiently clear that in the matter of voting for legislation that supports abortion such a judgment necessarily follows. The pastoral tradition of the church places the responsibility of such a judgment first on those presenting themselves for Holy Communion.”

In 2007a year before Pope Benedict appointed him to head the Vatican’s highest court then-Archbishop Burke published “The Discipline Regarding the Denial of Holy Communion to Those Obstinately Persevering in Manifest Grave Sin” a scholarly exposition on canon 915. In this article Burke delivered a scathing critique of the viewpoint of Cardinal Wuerl whom he names and quotes. Burke cites a “Declaration” issued by the Pontifical Council for Legislative Texts in 2000 concerning the reception of Holy Communion by divorced-and-remarried Catholics that insists that “the phrase ‘and others who obstinately persist in manifest grave sin’ is clear and must be understood in a manner that does not distort its sense so as to render the norm inapplicable.” Burke charges that Wuerl’s 2004 statement “would make it impossible to apply can. 915. It confuses the norm of can. 916 with the norm of can. 915 in a way which makes can. 915 superfluous.”

Whereas canon 915 applies to the minister of the Eucharist canon 916 applies to the recipient. It states that “a person who is conscious of grave sin is not to…receive the Body of the Lord without prior sacramental confession” when confession is possible — and it usually is possible. Canon 916 — not canon 915 — insists on the responsibility of the recipient to be mindful of the state of his soul.

This is why Cardinal Wuerl as Burke insists is mistaken. Applying canon 915 “is not a judgment on the subjective state of the soul of the person approaching to receive Holy Communion but a judgment regarding the objective condition of serious sin in a person who after due admonition from his pastor persists in cooperating formally with intrinsically evil acts like procured abortion.”

Burke’s lengthy article (it is over fifty pages long and contains more than ninety footnotes) appeared in Periodica de Re Canonica a prestigious journal published by Rome’s Pontifical Gregorian University. It is required reading for canon lawyers and prelates around the world.

Cardinal Wuerl undoubtedly took note.

And Burke undoubtedly took some heat.

In fact he admitted as much when EWTN’s Raymond Arroyo asked him about it in a December 2013 interview. “I’ve received very severe criticism” Burke said. “But…the [canonical] discipline itself is a consistent discipline from the time of St. Paulfrom the very first years of the Churchand it makes perfect sense.” Whether by coincidence or not five days after the interview aired Pope Francis’s decision to replace Cardinal Burke with Cardinal Wuerl on the Congregation for Bishops was made public by the Vatican.

In criticizing Cardinal Wuerl by name and in print Cardinal Burke committed what most bishops consider to be a cardinal sin: publicly criticizing a fellow bishop. Although prelates are supposed to exercise “fraternal correction”they rarely publicly criticize their brother bishops especially powerful ones. There is a logical reason for this: They don’t want to be criticized in turn.

A Band of Brothers
In spite of the plain language of canon 915 it is Cardinal Wuerl’s view and not Cardinal Burke’sthat is likely to prevail among America’s bishops.

Recall that in 2002 as the U.S. bishops arrived in Dallas for their annual meetingthey were met by a blockbuster story in the Dallas Morning News. Months of research had concluded that 111 of the country’s 178 diocesan ordinaries had allowed clerics accused of sexual abuse to continue working in ministry. It was at this meeting that the U.S. bishops adopted their “Charter for the Protection of Children and Young People.” Yet before it was adopted the bishops voted — in a nationally televised session — to exempt themselves from their own charter. Two-thirds of the prelates who met in Dallas were accused of enabling suspected abusers but they left Dallas with their brother bishopsreturned to their diocesesand rode out the storm from inside their chanceries. In the words of Benjamin Franklinthe bishops chose to hang togetherlest they hang separately.

As it happened virtually all bishops who were not abusers themselves remained in office until they reached retirement age or died. In diocese after diocese bishops settled abuse suits often paying out millions of dollars rather than risk an appearance in court that would require them to testify under oath. As years passed prelates around the country breathed a collective sigh of relief whenever another state’s statute of limitation expired. To counter that trend advocates for plaintiffs in several states — including Massachusetts Minnesota and California — have lobbied for the extension of statute-of-limitation laws so they can continue to hold the Church liable for civil damages in cases involving alleged clerical sexual abuse.

To answer the question of why Cardinal Wuerl’s interpretation of canon 915 and not Cardinal Burke’s is likely to prevailI would like to propose a scenario drawn from my years of experience on the U.S. Senate staff having worked closely with the Judiciary Committee during the Reagan years.

Let us suppose thatat some point this yearSenator Leahy’s new ordinary in Vermont (yet to be appointed) decides to apply canon 915 as Cardinal Burke articulates it. The bishop requests a meeting with Leahy in which he privately advises the Catholic senator that he should reconsider his support for abortion. In the meantime the bishop makes clear that Leahy is to refrain from receiving the Eucharist.

Senator Leahy flashing the classic politician’s smile (lots of teethcold eyes)refuses. Given that refusalthe new bishop then announces to the public that Senator Leahy is “obstinately persisting in manifest grave sin” and communicates to all pastors his firm directive that Leahy is not to receive the Eucharist.

Will Senator Leahy demurely submit? Publicly apologize? Promise to lead the 2015 March for Life?

I have watched Senator Leahy for thirty-four years. He knows the Church well — his brother-in-law a priest of the Holy Cross occupied the office next to mine decades ago in the basement of the Notre Dame library. Senator Leahy will not submit. Most likely he will retaliate.

Chairman Leahy has full prerogative over the schedule of the Senate Committee on the Judiciary. He might suddenly acquire an intense interest in statutes of limitation which are often complicated and which vary widely from state to state.

This seemingly innocuous spark of intellectual curiosity might prompt the chairman to call a series of historic hearings to discuss the matter inviting all the major media to cover them. The hearings would address the issue of whether the proposed extensions of the statutes of limitation in clergy abuse cases would be consistent with federal law including the Religious Freedom Restoration Act and the Free Exercise clause of the First Amendmentas interpreted by the Supreme Court.

Such hearings would have ample precedent. After all Woodrow Wilson once observed that “the informing function of Congress should be preferred even to its legislative function.” Chairman Leahy then announces that the hearing’s first panel of witnesses will feature prominent bishops who happen to have played a role in the scandals — some still active some now retired. The invited bishops will be required to attend of course — the Judiciary Committee has subpoena power. Some possible names come to mind: Excellencies and Eminences Mahony Law Weakland McCormack Skylstad Blaire — maybe even Wuerl.

The Judiciary Committee routinely swears in its witnesses. Lying while under oath constitutes perjury. And while the various statutes of limitation that might apply to the past conduct of these shepherds during the scandals have indeed expired they would now face a new one.

The moment a witness begins to testify under oath his sworn testimony is subject to the federal law covering perjury. If a jury finds any part of his testimony to be materially false after a trial in federal courtthe statutory penalty would apply: “[He shall] be fined under this title or imprisoned not more than five yearsor both” (18 U.S. Code § 1621).

The statute of limitation in cases of perjury is five years. The “clock starts ticking” on the day the testimony in question occurs. Thus after the prelates testify zealous investigators would have five years to examine every statement made under oath looking for evasions omissions or outright falsehoods.

Now let’s put ourselves in the bishops’ shoes.

“What does Leahy know?” they might wonder. “He was on the Intelligence Committee for years. Does he have records of my phone calls? E-mails from my private account? Drafts of my letters? Data dumps from my computers iPhones backup drives? Have the IRS and the FBI been sending him my files?”

A smiling Chairman Leahy warmly welcomes the bishopsand thanks them for appearing before the committee. After a brief opening statement the senator — who has been proclaimed an obstinate purveyor of persistent public scandal by one of their brother bishops — now turns the tables and conducts a public interrogation of leading American prelates regarding the sex-abuse and cover-up scandals — all broadcast live and nationwide.

Ringing in the bishops’ ears is that adamantine charge by the chairman to a reporter spoken out of the blue years ago in response to a completely different question: “Should be indicted…. Should be indicted….”

The cameras are rolling. Leahy can ask them anything. That old hearing favorite“What did you know and when did you know it?” would probably suffice.

The prelates must answerfully and truthfullyor plead the Fifth one after the otherwhile the whole country is watching.

It won’t actually be a litmus testit will merely be a prudential judgment.

A “pastoral” one of course.